CHARLES J. KAHN, JR., Magistrate Judge.
Before the court is an amended petition for writ of habeas corpus filed under 28 U.S.C. § 2254. (Doc. 17). Respondent filed an answer, providing relevant portions of the state court record. (Doc. 21). Petitioner replied and filed supplemental authority. (Docs. 26, 27). The matter is referred to the undersigned Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). The undersigned concludes that no evidentiary hearing is required for the disposition of this matter. Rule 8(a) of the Rules Governing Section 2254 Cases in the United States District Courts. The undersigned further concludes that the pleadings and attachments before the court show that petitioner is not entitled to habeas relief.
On May 13, 1987, petitioner and his co-defendant, Paula Foster Stallworth, murdered Stallworth's parents, Doris and Jesse Foster. (Doc. 21, Ex. B (indictment); Ex. C (judgment); Ex. E, p. 5 (motion for postconviction relief)).
On January 22, 2011, petitioner filed a pro se motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, alleging that his plea was involuntary because trial counsel misrepresented that he would be eligible for parole after 25 years. (Ex. E, pp. 1-21). The state circuit court summarily denied the motion as untimely. (Id., pp. 22-23). The Florida First District Court of Appeal (First DCA) affirmed per curiam without opinion. Malone v. State, 64 So.3d 1265 (Fla. 1st DCA 2011) (Table) (copy at Ex. H). The mandate issued July 26, 2011. (Ex. H).
On June 15, 2015, petitioner filed a pro se motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a), alleging that his sentences on Counts 3 and 4 violated double jeopardy principles because they were lesser-included offenses of Counts 1 and 2. (Ex. I, pp. 1-4). On February 4, 2016, the state circuit court summarily denied relief on the ground that petitioner's claim was not cognizable under Rule 3.800(a). (Ex. J). Petitioner did not appeal. (Ex. A).
On September 1, 2015, petitioner filed a pro se successive Rule 3.850 motion claiming that his sentence violated the Eighth Amendment in light of the Supreme Court's holding in Miller v. Alabama, 567 U.S. 460 (2012). (Ex. K, pp. 1-21). The state circuit court summarily denied relief without an evidentiary hearing. (Id., pp. 22-43). The First DCA affirmed per curiam without opinion. Malone v. State, 191 So.3d 465 (Fla. 1st DCA 2016) (Table) (copy at Ex. N). The mandate issued June 21, 2016. (Ex. N).
Petitioner filed his original federal habeas petition on November 15, 2016, (doc. 1), which he later amended (doc. 17). Petitioner's amended petition raises one claim — that his sentence is unconstitutional under Miller, supra. See Miller at 479 (holding that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders").
Federal courts are precluded from granting a habeas petition on a claim that was adjudicated on the merits in state court unless the state court's decision (1) "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court," or (2) "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). A state court's factual determinations are presumed correct, unless the petitioner rebuts the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
The United States Supreme Court explained the framework for § 2254 review in Williams v. Taylor, 529 U.S. 362 (2000).
Id., 529 U.S. at 412-13 (O'Connor, J., concurring).
Under the Williams framework, the federal court must first ascertain the "clearly established Federal law," namely, "the governing legal principle or principles set forth by the Supreme Court at the time the state court render[ed] its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). The law is "clearly established" only when a Supreme Court holding at the time of the state court decision embodies the legal principle at issue. See Thaler v. Haynes, 559 U.S. 43, 47 (2010); Woods v. Donald, 575 U.S. ___, ____, 135 S.Ct. 1372, 1376 (2015) ("We have explained that clearly established Federal law for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of this Court's decisions." (internal quotation marks and citation omitted)).
After identifying the governing legal principle(s), the federal court determines whether the state court adjudication is contrary to the clearly established Supreme Court case law. The adjudication is not contrary to Supreme Court precedent merely because it fails to cite to that precedent. Rather, the adjudication is "contrary" only if either the reasoning or the result contradicts the relevant Supreme Court cases. See Early v. Packer, 537 U.S. 3, 8 (2002) ("Avoiding th[e] pitfalls [of § 2254(d)(1)] does not require citation to our cases — indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them."). Where there is no Supreme Court precedent on point, the state court's conclusion cannot be contrary to clearly established federal law. See Woods, 135 S. Ct. at 1377 (holding, as to claim that counsel was per se ineffective in being absent from the courtroom for ten minutes during testimony concerning other defendants: "Because none of our cases confront the specific question presented by this case, the state court's decision could not be contrary to any holding from this Court." (internal quotation marks and citation omitted)). If the state court decision is contrary to clearly established federal law, the federal habeas court must independently consider the merits of the petitioner's claim. See Panetti v. Quarterman, 551 U.S. 930, 954 (2007).
If the "contrary to" clause is not satisfied, the federal habeas court next determines whether the state court "unreasonably applied" the governing legal principles set forth in the Supreme Court's cases. The federal court defers to the state court's reasoning unless the state court's application of the legal principle(s) was "objectively unreasonable" in light of the record before the state court. See Williams, 529 U.S. at 409; Holland v. Jackson, 542 U.S. 649, 652 (2004). The Supreme Court described the "unreasonable application" standard this way:
Woods, 135 S. Ct. at 1376 (quoting Harrington v. Richter, 562 U.S. 86 (2011)). The § 2254(d) standard "is difficult to meet . . . because it was meant to be." Richter, 562 U.S. at 102.
Section 2254(d) also allows federal habeas relief for a claim adjudicated on the merits in state court where that adjudication "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). The "unreasonable determination of the facts" standard is implicated only to the extent the validity of the state court's ultimate conclusion is premised on unreasonable fact finding. See Gill v. Mecusker, 633 F.3d 1272, 1292 (11th Cir. 2011). As with the "unreasonable application" clause, the federal court applies an objective test. See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (holding that a state court decision based on a factual determination "will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceeding."). Federal courts "may not characterize . . . state-court factual determinations as unreasonable merely because we would have reached a different conclusion in the first instance." Brumfield v. Cain, 576 U.S. ___, ____, 135 S.Ct. 2269, 2277 (2015) (quotation marks omitted).
Only if the federal habeas court finds that the petitioner satisfied § 2254(d), does the court take the final step of conducting an independent review of the merits of the petitioner's claims. See Panetti, 551 U.S. at 954. Even then, the writ will not issue unless the petitioner shows that he is in custody "in violation of the Constitution or laws and treaties of the United States." 28 U.S.C. § 2254(a).
Petitioner relies on Graham v. Florida, 560 U.S. 48 (2010), and Miller, supra, to argue that his sentences violate the Eighth Amendment's prohibition against cruel and unusual punishment. (Doc. 17, pp. 3, 7 in ECF). Petitioner describes himself as a "youth offender" with the maturity and mental capacity of a juvenile, as follows:
(Doc. 17, p. 7 in ECF). The parties agree that petitioner presented his Eighth Amendment claim to the state courts in his successive Rule 3.850 proceeding; that the state circuit court denied relief; and that the First DCA summarily affirmed without explanation. (Doc. 17, p. 3 in ECF; Doc. 21, p. 11). Respondent argues that petitioner is not entitled to relief because he fails to meet § 2254(d)'s demanding standard. (Doc. 21, pp. 13-16).
In Graham the Supreme Court held that "[t]he Constitution prohibits the imposition of a
The First DCA's summary affirmance is an "adjudication on the merits" entitled to deference under 28 U.S.C. § 2254(d). See Richter, 562 U.S. at 100 ("This Court now holds and reconfirms that § 2254(d) does not require a state court to give reasons before its decision can be deemed to have been `adjudicated on the merits.'"). Where, as here, there has been one reasoned state judgment rejecting a federal claim followed by a later unexplained order upholding that judgment or rejecting the same claim, federal habeas courts employ a "look through" presumption, described by the Supreme Court as follows: "We hold that the federal court should `look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale. It should then presume that the unexplained decision adopted the same reasoning." Wilson v. Sellers, ___ U.S. ____, 138 S.Ct. 1188, 1192 (2018).
The state circuit court rejected petitioner's claim for these reasons:
(Ex. K, pp. 22-23).
Applying Wilson's "look-through" presumption, the First DCA's rejection of petitioner's claim was neither contrary to, nor an unreasonable application of, Graham or Miller. The state court's findings — that petitioner is, in fact, eligible for parole and that he was over the age of 18 when he committed the double murder — are conclusively established by the record. (See Doc. 21, Ex. C (judgment); Ex. K, pp. 2-3 (allegations of petitioner's successive Rule 3.850 motion)). Petitioner does not dispute those facts here. (See Doc. 17, p. 3; Doc. 26, p. 4). Given these facts, the state court's decision was not contrary to Graham or Miller, because the facts are materially distinguishable from those cases. Moreover, the state court was not objectively unreasonable for declining to extend the legal principles from Graham and Miller to the facts of petitioner's case — a case that involved a sentence imposed pursuant to a valid counseled, negotiated plea agreement.
Petitioner's reply urges the extension of Graham and Miller to prisoners who were between the ages of 18 and 21 when they committed their offenses and whose parole eligibility will come late in their lives. (Doc. 26). Petitioner's notice of supplemental authority provides examples of where, according to petitioner, courts have applied Graham and Miller to offenders over the age of 18. (Doc. 27 (citing People v. House, 72 N.E.3d 357 (Ill. Ct. App. 2015), and United States v. Walters, 253 F.Supp.3d 1033 (E.D. Wis. 2017))). These cases are not holdings of the United States Supreme Court and, accordingly, are not "clearly established Federal law" for purposes of § 2254(d)(1). See Thaler v. Haynes, 559 U.S. 43, 47 (2010) ("A principle is `clearly established' within the meaning of [28 U.S.C. § 2254(d)(1)] only when it is embodied in a holding of this Court."). Further, House and Walters are legally and factually distinguishable. See House, 72 N.E. 3d at 389 (deciding the issue on state-law grounds and concluding: "[W]e need not address defendant's argument that the imposition[ ] of a mandatory life sentence was facially unconstitutional under the eighth amendment. . . ."); House, 253 F. Supp. 3d at 1036 (providing statement of reasons for sentencing 19-year-old defendant, who committed nonhomicide offenses, to supervised release). Neither case persuades the undersigned that the state court was unreasonable in declining to extend Miller to a nonjuvenile who committed a double murder and was sentenced pursuant to a counseled, negotiated plea agreement to life with the possibility of parole.
Petitioner has not shown that the state court's rejection of his claim "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 562 U.S. at 103. Petitioner is not entitled to federal habeas relief.
Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts provides: "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." If a certificate is issued, "the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2)." 28 U.S.C. § 2254 Rule 11(a). A timely notice of appeal must still be filed, even if the court issues a certificate of appealability. See 28 U.S.C. § 2254 Rule 11(b).
"[Section] 2253(c) permits the issuance of a COA only where a petitioner has made a `substantial showing of the denial of a constitutional right.'" Miller-El, 537 U.S. at 336 (quoting 28 U.S.C. § 2253(c)). "At the COA stage, the only question is whether the applicant has shown that `jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.'" Buck v. Davis, 580 U.S. ___, 137 S.Ct. 759, 774 (2017) (quoting Miller-El, 537 U.S. at 327). The petitioner here cannot make the requisite showing. Accordingly, the court should deny a certificate of appealability in its final order.
The second sentence of Rule 11(a) provides: "Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue." 28 U.S.C. § 2254 Rule 11(a). If there is an objection to this recommendation by either party, that party may bring such argument to the attention of the district judge in the objections permitted to this report and recommendation.
Accordingly, it is respectfully RECOMMENDED:
1. That the amended petition for writ of habeas corpus (doc. 17), challenging the judgment of conviction and sentence in State of Florida v. Thomas Wesley Malone, Leon County Circuit Court Case No. 1987-CF-1877, be DENIED.
2. That the clerk be directed to close the file.
3. That a certificate of appealability be DENIED.
